Whether Wars Raised by Subjects Be Lawful

Lex Rex [Law Is King, or The Law & The Prince] (1644)

Samuel Rutherford

QUESTION 28Whether or No Wars Raised by the Subjects and Estates, for Their Own Just Defense Against the King’s Bloody Emissaries, Be Lawful

Arnisaeus perverts the question; he says, “The question is, Whether or no the subjects may, according to their power, judge the king and dethrone him; that is, Whether or no it is lawful for the subjects in any case to take arms against their lawful prince, if he degenerate, and shall wickedly use his lawful power.”

1. The state of the question is much perverted, for these be different questions, Whether the kingdom may dethrone a wicked and tyrannous prince, and whether the kingdom may take up arms against the man who is the king, in their own innocent defense. For the former is an act offensive, and of punishing; the latter is an act of defense.

2. The present question is not of subjects only, but of the estates, and parliamentary lords of a kingdom. I utterly deny these, as they are judges, to be subjects to the king; for the question is, Whether is the king or the representative kingdom greatest, and which of them be subject one to another? I affirm, amongst judges, as judges, not one is the commander or superior, and the other the commanded or subject. Indeed, one higher judge may correct and punish a judge, not as a judge, but as an erring man.

3. The question is not so much concerning the authoritative act of war, as concerning the power of natural defense, upon supposition, that the king be not now turned an habitual tyrant; but that upon some acts of misinformation, he come in arms against his subjects.

Arnisaeus makes two sort of kings,  “Some kings integrae majestatis, of entire power and sovereignty; some kings by pacts, or voluntary agreement between king and people.” But I judge this a vain distinction; for the limited prince, so he be limited to a power only of doing just and right, by this is not a prince integrae majestatis, of entire royal majesty, whereby he may both do good and also play the tyrant; but a power to do ill being no ways essential, yea, repugnant to the absolute majesty of the King of kings, cannot be an essential part of the majesty of a lawful king; and therefore the prince, limited by voluntary and positive pact only to rule according to law and equity, is the good, lawful, and entire prince, only if he have not power to do every thing just and good in that regard, he is not an entire and complete prince. So the man will have it lawful to resist the limited prince; not the absolute prince; by the contrary, it is more lawful to me to resist the absolute prince than the limited, inasmuch as we may with safer consciences resist the tyrant and the lion, than the just prince and lamb.

Nor can I assent to Cunnerius (de officio princip. Christia. c. 5 and 17,) who holds, “that these voluntary pacts between king and people, in which the power of the prince is diminished, cannot stand, because their power is given to them by God’s word, which cannot be taken from them by any voluntary pact, lawfully;” and from the same ground, Winzetus (in velit. contr. Buchan. p. 3) “will have it unlawful to resist kings, because God has made them irresistible.” I answer,  If God, by a divine institution, make kings absolute, and above all laws, (which is a blasphemous supposition  the holy Lord can give to no man a power to sin, for God has not himself any such power.) then the covenant between the king and people cannot lawfully remove and take away what God by institution has given; but because God (Deut. 17) has limited the first lawful king, the mold of all the rest, the people ought also to limit him by a voluntary covenant; and because the lawful power of a king to do good is not by divine institution placed in an indivisible point.

It is not a sin for the people to take some power, even of doing good, from the king, that he solely, and by himself, shall not have power to pardon an involuntary homicide, without advice and the judicial suffrages of the council of the kingdom, least he, instead of this, give pardons to robbers, to abominable murderers; and in so doing, the people robs not the king of the power that God gave him as king, nor ought the king to contend for a sole power in himself of ministering justice to all; for God lays not upon kings burdens impossible; and God by institution has denied to the king all power of doing all good; because it is his will that other judges be sharers with the king in that power, (Num. 14:16; Deut. 1:14-17; 1 Pet. 2:14; Rom. 13:1-4;) and therefore the duke of Venice, to me, comes nearest to the king molded by God, (Deut. 17) in respect of power, de jure, of any king I know in Europe. And in point of conscience, the inferior judge discerning a murderer and bloody man to die, may in foro conscientiae despise the king’s unjust pardon, and resist the King’s force by his co-active power that God has given him, and put to death the bloody murderer; and he sins if he do not this; for to me it is clear, that the king cannot judge so justly and understandingly of a murderer in Scotland, as a judge to whom God has committed the sword in Scotland. Nor has the Lord laid that impossible burden on a king to judge so of a murder four hundred miles removed from the king, as the judge nearer to him, as is clear by Num. 14:16; 1 Sam. 7:15-17. The king should go from place to place and judge; and whereas it is impossible to him to go through three kingdoms, he should appoint faithful judges, who may not be resisted,  no, not by the king.

1. The question is, If the king command A. B. to kill his father or his pastor,  the man neither being cited nor convicted of any fault, he may lawfully be resisted.

2. Queritur.  If, in that case in which the king is captived, imprisoned, and not sui juris, and awed or overawed by bloody papists, and so is forced to command a barbarous and unjust war; and if, being distracted physically or morally through wicked counsel, he command that which no father in his sober wits would command, even against law and conscience,  that the sons should yield obedience and subjection to him in maintaining, with lives and goods, a bloody religion and bloody papists: if in that case the king may not be resisted in his person, because the power lawful and the sinful person cannot be separated. We hold, that the king using, contrary to the oath of God and his royal office, violence in killing; against law and conscience, his subjects, by bloody emissaries, may be resisted by defensive wars, at the commandment of the estates of the kingdom.

But before I produce arguments to prove the lawfulness of resistance, a little of the case of resistance.

1. Dr Ferne (part 3, sect. 5, p. 39) grants resistance by force to the king to be lawful, when the assault is sudden, without color of a law or reason, and inevitable. But if Nero burn Rome, he has a color of law and reason; yea, though all Rome, and his mother, in whose womb he lay, were one neck. A man who will with reason go mad, has color of reason, and so of law, to invade and kill the innocent.

2. Arnisaeus says, (c. 2, n. 10,) “If the magistrate proceed extra-judicialiter, without order of law by violence, the laws gives every private man power to resist, if the danger be irrecoverable; yea, though it be recoverable.” (L. prohibitum, C. de jur. fisc. l. que madmodum, sect. 39, magistratus ad l. aquil. l. nec. magistratibus, 32, de injur.) Because, while the magistrate does against his office, he is not a magistrate; for law and right, not injury, should come from the magistrate. (L. meminerint. 6, C. unde vi.) Yea, if the magistrate proceed judicially, and the loss be irrecoverable, jurists say that a private man has the same law to resist. (Marantius. dis. 1, n. 35). And in a recoverable loss they say, every man is holden to resist, si evidenter constet de iniquitate, if the iniquity be known to all. (D. D. Jason. n. 19, des. n. 26, ad l. ut vim de just. et jur.)

3. I would think it not fit easily to resist the king’s unjust exactors of custom or tribute. (1.) Because Christ paid tribute to Tiberius Caesar, an unjust usurper, though he was free from that, by God’s law, lest he should offend. (2.) Because we have a greater dominion over goods than over our lives and bodies; and it is better to yield in a matter of goods than to come to arms, for of sinless evils we may choose the least.

For the lawfulness of resistance in the matter of the king’s unjust invasion of life and religion, we offer these arguments.

Arg. 1.  That power which is obliged to command and rule justly and religiously for the good of the subjects, and is only set over the people on these conditions, and not absolutely, cannot tie the people to subjection without resistance, when the power is abused to the destruction of laws, religion, and the subjects. But all power of the law is thus obliged, (Rom. 13:4; Deut. 17:18-20; 2 Chron. 19:6; Ps. 132:11, 12; 89:30, 31; 2 Sam. 7:12; Jer. 17:24, 25,) and has, and may be, abused by kings, to the destruction of laws, religion, and subjects. The proposition is clear. 1. For the powers that tie us to subjection only are of God. 2. Because to resist them, is to resist the ordinance of God. 3. Because they are not a terror to good works, but to evil. 4. Because they are God’s ministers for our good, but abused powers are not of God, but of men, or not ordinances of God; they are a terror to good works, not to evil; they are not God’s ministers for our good.

Arg. 2.  That power which is contrary to law, and is evil and tyrannical, can tie none to subjection, but is a mere tyrannical power and unlawful; and if it tie not to subjection, it may lawfully be resisted. But the power of the king, abused to the destruction of laws, religion, and subjects, is a power contrary to law, evil, and tyrannical, and ties no man to subjection: wickedness by no imaginable reason can oblige any man. Obligation to suffer of wicked men falls under no commandment of God, except in our Savior. A passion, as such, is not formally commanded, I mean a physical passion, such as to be killed. God has not said to me in any moral law, Be thou killed, tortured, beheaded; but only, Be thou patient, if God deliver thee to wicked men’s hands, to suffer these things.

Arg. 3.  There is not a stricter obligation moral between king and people than between parents and children, master and servant, patron and clients, husband and wife, the lord and the vassal, between the pilot of a ship and the passengers, the physician and the sick, the doctor and the scholars, but the law grants, (L Minime 35, de Relig. et sumpt. funer, if these betray their trust committed to them, they may be resisted: if the father turn distracted, and arise to kill his sons, his sons may violently apprehend him, and bind his hands, and spoil him of his weapons; for in that he is not a father. Vasquez, (Lib. 1, Illustr. quest. c. 8, n. 18,)  Si dominus subditum enormiter et atrociter oneraret, princeps superior vassullum posset ex toto eximare a sua jurisdictione, et etiam tacente subdito et nihil petente. Quid papa in suis decis. parliam. grat, decis. 62. Si quis Baro. abutentes dominio privari possunt. The servant may resist the master if he attempts unjustly to kill him, so may the wife do to the husband; if the pilot should wilfully run the ship on a rock to destroy himself and his passengers, they might violently thrust him from the helm. Every tyrant is a furious man, and is morally distracted, as Althusius says, Polit. c. 28, n. 30, and seq.

Arg. 4.  That which is given as a blessing, and a favor, and a screen, between the people’s liberty and their bondage, cannot be given of God as a bondage and slavery to the people. But the power of a king is given as a blessing and favor of God to defend the poor and needy, to preserve both tables of the law, and to keep the people in their liberties from oppressing and treading one upon another. But so it is, that if such a power be given of God to a king, by which, actu primo, he is invested of God to do acts of tyranny, and so to do them, that to resist him in the most innocent way, which is self-defense, must be a resisting of God, and rebellion against the king, his deputy; then has God given a royal power as uncontrollable by mortal men, by any violence, as if God himself were immediately and personally resisted, when the king is resisted, and so this power shall be a power to waste and destroy irresistibly, and so in itself a plague and a curse; for it cannot be ordained both according to the intention and genuine formal effect and intrinsical operation of the power, to preserve the tables of the law, religion and liberty, subjects and laws, and also to destroy the same. But it is taught by royalists that this power is for tyranny, as well as for peaceable government; because to resist this royal power put forth in acts either ways, either in acts of tyranny or just government, is to resist the ordinance of God, as royalists say, from Rom. 13:1-3, And we know, to resist God’s ordinances and God’s deputy, formaliter, as his deputy, is to resist God himself, (1 Sam. 8:7; Matt. 10:40,) as if God were doing personally these acts that the king is doing; and it imports as much as the King of kings does these acts in and through the tyrant.

Now, it is blasphemy to think or say, that when a king is drinking the blood of innocents, and wasting the church of God, that God, if he were personally present, would commit these same acts of tyranny, (God avert such blasphemy!) and that God in and through the King, as his lawful deputy and vicegerent in these acts of tyranny, is wasting the poor church of God. If it be said, in these sinful acts of tyranny, he is not God’s formal vicegerent, but only in good and lawful acts of government, yet he is not to be resisted in these acts, not because the acts are just and good, but because of the dignity of his royal person. Yet this must prove that those who resist the king in these acts of tyranny, must resist no ordinance of God, but only resist him who is the Lord’s deputy, though not as the Lord’s deputy. What absurdity is there in that more than to disobey him, refusing active obedience to him who is the Lord’s deputy, not as the Lord’s deputy, but as a man commanding besides his masters warrant?

Arg. 5.  That which is inconsistent with the care and providence of God in giving a king to his church is not to be taught. Now God’s end in giving a king to his church, is the feeding, safety, preservation, and the peaceable and quiet life of his church. (1 Tim. 2:2; Isa. 49:23; Psal. 79:71). But God should cross his own end in the same act of giving a king, if he should provide a king, who, by office, were to suppress robbers, murderers, and all oppressors and wasters in his holy mount, and yet should give an irresistible power to one crowned lion, a king, who may kill ten hundred thousand protestants for their religion, in an ordinary providence; and they are by an ordinary law of God to give their throats to his emissaries and bloody executioners. If any say the king will not be so cruel,  I believe it; because, actu secundo, it is not possibly in his power to be so cruel. We owe thanks to his good will that he kills not so many, but no thanks to the nature and genuine intrinsical end of a king, who has power from God to kill all these, and that without resistance made by any mortal man. Yea, no thanks (God avert blasphemy!) to God’s ordinary providence, which (if royalists may be believed) puts no bar upon the unlimited power of a man inclined to sin, and abuse his power to so much cruelty. Some may say, the same absurdity does follow if the king should turn papist, and the parliament all were papists. In that case there might be so many martyrs for the truth put to death, and God should put no bar of providence upon this power, then more than now; and yet, in that case, the king and parliament should be judges given of God, actu primo, and by virtue of their office obliged to preserve the people in peace and godliness. But I answer, If God gave a lawful official power to king and parliament to work the same cruelty upon millions of martyrs, and it should be unlawful for them by arms to defend themselves, I should then think that king and parliament were both ex officio, by virtue of their office, and actu primo, judges and fathers, and also by that same office, murderers and butchers,  which were a grievous aspersion to the unspotted providence of God.

Arg. 6.  If the estates of a kingdom give the power to a king, it is their own power in the fountain; and if they give it for their own good, they have power to judge when it is used against themselves, and for their evil, and so power to limit and resist the power that they gave. Now, that they may take away this power, is clear in Athaliah’s case. It is true she was a tyrant without a title, and had not the right of heaven to the crown, yet she had, in men’s court, a title. For supposing all the royal seed to be killed, and the people consent, we cannot say that, for these six years or thereabout, she was no magistrate: that there were none on the throne of David at this time: that she was not to be obeyed as God’s deputy. But grant that she was no magistrate; yet when Jehoash is brought forth to be crowned, it was a controversy to the states to whom the crown should belong. 1. Athaliah was in possession. 2. Jehoash himself being but seven years old, could not be judge. 3. It might be doubted if Joash was the true son of Ahaziah, and if he was not killed with the rest of the blood royal.

Two great adversaries say with us; Hugo Grotius (de jur. belli et pacis, l. 1, c. 4, n. 7,) says he dare not condemn this, if the lesser part of the people, and every one of them indifferently, should defend themselves against a tyrant, ultimo necessitatis praesidio. The case of Scotland, when we were blocked up by sea and land with armies: the case of England, when the king, induced by prelates, first attempted to bring an army to cut off the parliament, and then gathered an army, and fortified York, and invaded Hull, to make the militia his own, sure is considerable. Barclay says, the people has jus se tuendi adversus immanem saevitiem, (advers. Monarch. l. 3, c. 8,) a power to defend themselves against prodigious cruelty. The case of England and Ireland, now invaded by the bloody rebels of Ireland, is also worthy of consideration. I could cite hosts more.